South Carolina - Civil Procedure Flashcards
Personal Jurisdiction Analysis
(1) State Long-Arm Statute
(2) Due Process Analysis
South Carolina Long Arm Statute
T^3 C^3 R PMDRE
(1) Transacting any business in SC
(2) Tortious Act in SC
(3) Tortious Act/Omission outside SC, by Defendant who (i) regularly does business in SC, (ii) engages in persistent course of conduct in SC, or (iii) derives substantial revenue from goods used or services rendered in SC
(4) Contracting to supply services or things in SC
(5) Contracting to insure a person, property, or risk in SC at the time of contracting
(6) Contract to be performed in SC (in whole or in part)
(7) Real Property: interest in, use of, or possession of RP in SC
(8) PMDRE: (i) production, manufacture, or distribution of goods (ii) with reasonable expectation those goods are used in SC and (iii) goods are so used/consumed
* CATCHALL: L-A extends to limits allowed by Due Process
DOOR-CLOSING STATUTE:
(1) Foreign Corporations can be sued in SC by
(a) SC residents regardless of claim, or
(b) non-residents if claim arose in or concerns property in SC.
I.e., SC courts are closed to claims by non-residents against foreign corporations when the claim did not arise or does not concern property in SC.
SUBJECT MATTER JURISDICTION: CIRCUIT COURTS
Original Jurisdiction
Appellate Jurisdiction
ORIGINAL JURISDICTION
Original SMJ over all cases except those in exclusive jurisdiction of some other court (esp., SC Workers Compensation Commission, Family Court, Probate Court)
APPELLATE JURISDICTION
CC has appellate jurisdiction over decisions of administrative agencies, magistrate courts, and probate courts
SUBJECT MATTER JURISDICTION: MASTERS IN EQUITY
Jurisdiction
Jury Cases
Division of Circuit Courts
Circuit Court may refer to Master in Equity cases of default, foreclosure, or upon court’s/party’s motion.
Any issue triable by jury must be returned to Circuit Court when demand requesting jury trial is filed
SUBJECT MATTER JURISDICTION: Family court
Exclusive jurisdiction over domestic relations matters
SUBJECT MATTER JURISDICTION: PROBATE COURT
Original Jurisdiction/Exclusive Jurisdiction
Removal
Exclusive original jurisdiction over matters relating to decedents’ estates (including, involuntary commitments)
REMOVAL
At close of pleadings, may remove matter to Circuit Court
(a) formal proceedings for probate of wills or apportionment of partnership,
(b) construction of wills
(c) actions to try title,
(d) trusts, and
(e) actions where party has right to jury trial and AIC exceeds $5,000
SUBJECT MATTER JURISDICTION: MAGISTRATE’S COURTS
Jurisdiction (and exceptions)
Removal
JURISDICTION: jurisdiction over matters
(1) within its boundaries (2) involving $7,500 or less
EXCEPTIONS: Cases in which
(1) title to Real Property is in issue, or
(2) South Carolina is a party and AIC is more than $100
REMOVAL: if counterclaim is more than $7,500, case must be transferred to Circuit Court.
VENUE: Resident Individuals
(1) County where ∆resides when COA arose (if multiple ∆s, where any ∆ resides), or
(2) county where MOST substantial part of act/omission giving rise to the COA occurred
VENUE: Nonresident Individuals
(1) County where πresides or where π’s PPB is located at time COA arose, or
(2) County where MOST substantial part of act/omission giving rise to COA occurred
VENUE: Business Entities
(1) County where ∆’s PPB is located when COA arose, or
(2) County where most substantial part of act/omission giving rise to the COA occurred
VENUE: Foreign Business Entities LICENSED to do business in SC
(1) County where ∆has its PPB at time COA arose, or
(2) County where most substantial part of act or omission giving rise to COA occurred
VENUE: Foreign Business Entities NOT LICENSED to do business in SC
(1) County where π resides or where πhas its PPB at the time the COA arose,
(2) County where foreign business has its PPB at time COA arose, or
(3) County where most substantial part of the act/omission giving rise to the COA occurred
VENUE: Property Actions
The following are tried in the county where the subject property is situated:
(1) actions for recovery of real property, an interest in real property, or determination of an interest in real property
(2) partition action
(3) foreclosure action
(4) action for the recover of personal property
VENUE:
Definition of “Principal Place of Business”
Timing: time at which PPB is determined
(1) Nerve Center (“Home Office”): home office within the state from which its officers direct, control, or coordinate its activities;
(2) If no home office in SC, then where corporation’s manufacturing, sales, or purchasing facility is located within the state;
(3) If no home office and more than one such facility, then the location where the majority of corporate activities take place (consider number of employees, authority of employees there, and tangible corporate assets in county)
TIMING
PPB determined at time COA arises
VENUE: Change of Venue
CHOSEN VENUE IMPROPER
on ∆’s motion, court MUST transfer to proper county.
CHOSEN VENUE PROPER:
Court MAY transfer if
(a) fair and impartial trial cannot be had in current county, or
(b) convenience of witnesses and ends of justice would be promoted only by changing to another county
Forum Non Conveniens
Court may decline jurisdiction. Consider:
(1) ease of access to proof
(b) availability of compulsory process
(c) cost of obtaining attendance of Ws
(d) administrative difficulties, such as language barriers
(e) interest in having local controversies decided at home
(f) interest in litigating case in a forum familiar with applicable law
VENUE: Effect of Forum Selection Clauses & Arbitration Agreements
Generally unenforceable in SC to move the action out of SC to the designated place.
*Notice and Service of Process Analysis
Two Prongs:
(1) Statutory Rule
(2) Due Process Requirement: “Notice must be reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action.
* Two Parts!*
SERVICE OF PROCESS: Elements of a Summons
Title
- Court
- Case Classification
- Associated Code Number
- Names and addresses of all parties
- Direction to ∆ to serve answer
- Time within response is required
- Notice that judgment will be entered if no response is timely served
- Written signature of π (or π’s attorney)
SERVICE OF PROCESS: Who to serve
Requirements for serving…
- Individuals (and Sunday Rule)
- Minors (under 14)/Incompetents
- Minors (btw 14-18) living with parent/guardian
- Corporations/Partnerships
INDIVIDUALS
Must be 14 or older and competent
Sunday Rule: can’t serve ∆while going to or from religious service on sunday
MINORS (UNDER 14)/INCOMPETENTS
Serve minor/incompetent AND Guardian/Parent/Caregiver with whom she resides
MINORS (14-18) LIVING W/ PARENT/GUARDIAN
Serve minor AND parent/guardian
CORPORATIONS/PARTNERSHIPS
Serve officer, managing/general agent, or agent authorized to receive SofP.
If it’s a foreign corporation and not authorized to do business in SC, may serve secretary of state
SERVICE OF PROCESS: How to Serve (manner of service) (Part 1 of 3)
Generally (for individuals, corporations, and partnerships)
For Out-of-State Defendants
PERSONAL SERVICE
(1) personally, or (2) leaving documents at ∆’s “usual place of abode with some person of suitable age and discretion then residing therein.”
Courier must be a non-party who is OVER 18
CERTIFIED MAIL/COMMERCIAL DELIVERY
May serve corporations, partnerships, and competent individuals over 14 by CERTIFIED MAIL ((or designated commercial delivery service))
Effective Date: date on delivery as shown on return receipt. If shown, ∆has burden to show receipt signed by an unauthorized person
LONG ARM STATUTE: (for out-of-state ∆s):
(1) personal delivery
(b) complying with law of state where service is made, or
(c) by certified mail.
SERVICE OF PROCESS: How to Serve (manner of service) (Part 2 of 3)
Non-Resident Motorists
Insurance Companies
NON-RESIDENT MOTORISTS
May use Long-Arm Statute, or serve Director of Department of Public Safety
INSURANCE COMPANIES
If licensed in SC: May serve Director of SC department of Insurance
If Not Licensed in SC: May serve Secretary of State
SERVICE OF PROCESS: How to Serve (manner of service) (Part 3 of 3)
Service by Publication
- Cases where it arises
- Manner of Publication
If ∆can’t be found in SC after exercising due diligence, judge/clerk MAY order service by publication in these cases:
(1) non-resident who has property in SC, and court has jurisdiction over subject matter
(2) foreign corporation that has property in SC, or COA arose in SC
(3) ∆is a resident but has concealed himself, left the state, or cant’ be found after diligent search
(4) Subject of action is property in SC, and ∆claims an interst in property or the relief sought in exclusion of ∆ from property
(5) ∆is a non-rsident or person upon whom service cannot be made in SC, and proceeding involves adoption or termination of parental rights
(6) action is an annulment proceeding or involves custody of minor children, support of minor children or wife, or legal separation
MANNER OF PUBLICATION
Judge/Clerk will determine newspaper which will most likely give notice to ∆. Officer will also mail summons to ∆.
When does action commence; i.e., what effect filing have on SOL
Action commences when summons and complaint are filed with the court if
(a) ∆ is served within the SOL, OR
(b) ∆ is served within 120 days of filing.
Pleading Requirements (i.e., elements of a complaint)
(1) Short and plain statement of the FACTS showing the pleader is entitled to relief, and
- Pleading should state ultimate facts–not evidentiary facts nor conclusions of law
(2) Demand for relief: specified sum may be demanded for ACTUAL DAMAGES, but punitive and exemplary must be stated in general terms (not a stated sum)
TIMING FOR ANSWER
South Carolina
FRCP
SOUTH CAROLINA:
(1) 30 days after Service of Process; or
(2) 15 days after notice of denial of a pre-answer motion
FRCP:
(1) 21 days after Service of Process; or
(2) 14 days after notice of denial of a pre-answer motion
TIMING FOR AMENDMENTS
South Carolina
FRCP
Relation Back
SOUTH CAROLINA
Complaint: w/in 30 days after responsive pleading (answer) is served
Answer: w/in 30 days of serving pleading (answer)
If deadline passes: must get permission of oppcon or court
FRCP
Complaint: within 21 days of ∆filing answer or motion to dismiss
Answer: within 21 days of serving it
If deadline passes: must get permission of oppcon or court
RELATION BACK
Same as FRCP
Rule 11
REQUIREMENT
CONSULTATION
SANCTIONS
REQUIREMENT All documents (including pleadings, motions, and discovery documents) must be signed by party or party's attorney
Signature certifies
1. attorney/party has READ the documents;
- to the best of the attorney’s (party’s) knowledge, information and belief
(i) there is good ground to support the documents (good facts/good law), and
(ii) it is not interposed for an improper purpose (good faith)
CONSULTATION All motions (except dispositive motions) must contain affirmation that movant's counsel communicated with oppcon and attempted in GF to resolve the matter contained in the motion
SANCTIONS: made by motion or sua sponte
Joinder of Claims and Parties
South Carolina
FRCP
Totes Samesies!
DISCOVERY: Discovery Meeting and Proposed Order
Not required in SC unless court ordered
DISCOVERY: Initial Disclosures
Not required in SC: all discovery is obtained by serving appropriate requests
DISCOVERY: Scope of Discovery
“Relevant to the SUBJECT MATTER involved in the pending action.” (broader than FRCP)
Permitted to discover anything “reasonably calculated to lead to admissible evidence.”
DISCOVERY: Scope of Discovery > Insurance Agreements
Existence and content of any insurance agreement (under which insurer might be liable for all/part of the judgment) is discoverable.
DISCOVERY: DEPOSITIONS > cases permitted
Depositions permitted when
(1) AIC is $10,000 or more, or
(2) when good cause is shown
DISCOVERY: DEPOSITIONS > Use at Trial
Same as FRCP, except
TREATING PHYSICIAN:
Deposition can be used for any purpose if
(1) deponent is a LICENSED physician, psychologist, chiropractor, or dentist
(2) who ACTUALLY PROVIDED TREATMENT to a party
DISCOVERY: DEPOSITIONS > Direction Not to Answer
Attorney’s direction to witness not to answer can be supported by
(1) privilege,
(2) court-ordered limitation on discovery under R26(c), or
(3) a motion under Rule 30(d) to terminate the deposition
Counsel who directs witness not to answer MUST seek a protective order under R26(c) or R30(d) within FIVE (5) business days of the suspension/termination of the deposition. Failure will waive objection and the deposition may be reconvened
DISCOVERY: DEPOSITIONS > Counsel-Witness Conferences
Only allowed for deciding whether to assert privilege
If used, must state on the record reason for conference and decision made from conference
DISCOVERY: DEPOSITIONS > Documents
Deposing counsel must provide oppcon a copy of all docs to be shown to witness during deposition.
If docs are provided at least TWO (2) business days before deposition, then oppcon and W have no right to discuss docs privately before W is deposed.
If docs NOT provided at least TWO (2) business days before depo, then oppcon and W have reasonable time to privately discuss the docs before W is deposed about them
DISCOVERY: DEPOSITIONS > Timing > At what point can it be obtained?
Any time, but must be THIRTY (30) days after SofP, unless ∆ has sought DISCOVERY before that time or leave of court is obtained
DISCOVERY: INTERROGATORIES > Standard Interrogatories
- Names and address of witnesses, the existence of any statements taken from teh witnesses, and the person who has possession of any such statements;
- photos, sketches, or other prepared documents;
- if the case is a personal injury action, the names and addresses of all physicians and hospitals that treated a party and a statement of all medical costs;
- relevant insurance companies, policy numbers, and amounts of the coverage;
- itemized statements of damages, exclusive of pain and suffering;
- names and addresses of expert witnesses; and
- summary of facts known to or observed by the witnesses listed
DUTY TO UPDATE
Responding party has duty to automatically update responses to standard interrogatories until trial without request.
DISCOVERY: INTERROGATORIES > General Interrogatories
South Carolina (availability; timing)
FRCP (availability; timing)
SOUTH CAROLINA
Cases under $25,000: Limited to standard interrogatories (unless leave of court granted)
Cases of $25,000 or more: up to 50 general interrogatories (more with leave of court)
Timing: Answers/objections sent within 30 days, but if roggs sent with SofP, then 45 days
FRCP
25 interrogatories
Timing: 30 days
DISCOVERY: REQUEST FOR PRODUCTION
South Carolina
FRCP
SOUTH CAROLINA: Same as FRCP, except timing
Timing: response required within 30 days, but if sent with SofP, then 45 days
FRCP
Timing: 30 days
DISCOVERY: PHYSICAL/MENTAL EXAMINATION
Availability
Examination Procedures
Limitation on Physician
Same as FRCP–(a) when medical condition is actually in controversy, and (2) good cause is shown–and
SC Requirement: (3) permitted only in cases in which AIC exceeds $100,000
EXAMINATION PROCEDURES
Named party has right to have her own physician present
Location: county of the examined party or her physician, unless consent
LIMITATION ON PHYSICIAN
can only be conducted by physician (including psychiatrist), but NOT a psychologist
DISCOVERY: REQUEST FOR ADMISSION
South Carolina
FRCP
SOUTH CAROLINA
20 requests for permission available
[[i guess timing of this is 30 days, unless sent with SofP, then 45 days]]
FRCP
unlimited.
Timing: 30 days
Temporary Restraining Orders
South Carolina
FRCP
South Carolina: 10 days
FRCP: 14 days
Voluntary Dismissal
Same as FRCP
From Memory:
withdraw before counter claim
stipulation of dismissal (settlement)
[[FRCP: can’t withdraw if CC and oppcon would lose jurisdiction)
Involuntary Dismissal
Same as FRCP
From Memory:
failure to prosecute the case
Failure to follow SCRCP or a court order
DEFAULT JUDGMENT
Who can enter Default
Notice TIming if Defendant has appeared (SC vs. FRCP)
Hearing if damages are unliquidated (SC vs. FRCP)
Only Judge (NOT Clerk) can enter Default Judgment (regardless of type).
DEFENDANT APPEARED: If ∆has appeared, must give 3 days notice of D/J Hearing (FRCP is 7 Days)
UNLIQUIDATED DAMAGES
Must hold hearing and give ∆notice, regardless of whether ∆appeared (FRCP: no notice req’d if ∆ didn’t appear).
Dismissal for Failure to State a Claim
Same as FRCP
Summary Judgment
Rule
Timing
Same as FRCP, except
TIMING
PLAINTIFFmust file it (i) after 30 days from commencement of the action, or
(ii) after ∆ files motion for S/J.
[DEFENDANT can file it whenever]
Right to Jury
Source of Right
Timing (SC vs. FRCP)
7th Amendment inapplicable to the states, but SC CX provides same guarantee as Federal CX
Timing: WRITTEN demand for jury no later than TEN (10) days after last pleading addressing a jury-triable issue (FRCP 14 days)
Directed Verdict
Same as FRCP “JMOL”
Motion for Non-Suit
Used in BENCH TRIALS to challenge sufficiency of π’s evidence (like directed verdict)
Court may dismiss action at close of π’s evidence if judge would not find for πon that evidence
JNOV
AVAILABILITY
TIMING
AVAILABILITY
South Carolina: same as FRCP, except
Prerequisite: only allowed if party made directed verdict motion at the close of ALL the evidence
FRCP: JNOV at some point in trial
TIMING
South Carolina: must be “promptly” after jury is discharged (or in the discretion fo the court, no later than TEN (10) days thereafter)
FRCP: 28 days after entry of judgment
Motion for New Trial > Standard
SC
FRCP
SOUTH CAROLINA: “Thirteenth Juror” Standard: SC allows trial judge more discretion than FRCP to grant new trial in cases where trial judge would reach a different result than the jury (even if jury’s result is reasonable)
FRCP: Manifest weight of the evidence
Motion for New Trial > Timing
SOUTH CAROLINA: promptly after jury is discharged (or in the discretion of the court, no later than 10 days thereafter)
FRCP: 28 days after judgment
New Trial on Damages Alone
Remittitur/Additur
Damages are “shocking”
SOUTH CAROLINA
Permitted only if evidence would support a directed verdict for πon liability.
REMITTITUR/ADDITUR: allowed when verdict is merely excessive or inadequate, but NOT shocking
VERDICT IS SHOCKING
If verdict is “shocking” [b/c of damages], court MUST grant a new trial. If “shocking” court is not allowed to use remittitur or additur
Motion for Relief From Judgment
Same as FRCP
Res Judicata and Collateral Estoppel
Same as FRCP
Minimum Contacts Rule Statement
South Carolina may exert personal jurisdiction over an out-of-state defendant when that person has minimum contacts with South Carolina, the cause of action arises out of those minimum contacts, and subjecting that person to the Court’s jurisdiction “does not offend the traditional notions of fair play and substantial justice.”
Minimum contacts require that the defendant “PURPOSEFULLY AVAIL” herself to the benefits and protections of South Carolina.
The analysis further requires that the defendant know or reasonably should have known that her conduct RENDERED IT FORESEEABLE that she may be “HALED INTO COURT” in South Carolina.
Finally, in determining whether exercising jurisdiction over the defendant would offend the traditional notion of fair play and substantial justice, the court will often consider the burden on the defendant, the plaintiff’s interest in obtaining relief, the interests of South Carolina, the states’ shared interests in efficiency, and the shared policy of the states.
